SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934.
Date of Report: June 22, 2017
(Date of earliest event reported)
SciClone Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
(State or other jurisdiction
950 Tower Lane, Suite 900,
Foster City, CA
|(Address of principal executive offices)||(Zip Code)|
(Registrants telephone number, including area code)
(Former Name or Former Address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|☐||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|☒||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|☐||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|☐||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
|Item 8.01.||Other Events|
Supplemental Deposit of Merger Consideration under Merger Agreement
As previously disclosed on its Current Report on Form 8-K filed on June 8, 2017, SciClone Pharmaceuticals, Inc., a Delaware corporation (the Company ) entered into an Agreement and Plan of Merger (as it may be amended from time to time, the Merger Agreement ) on June 7, 2017 with Silver Biotech Investment Limited, a company organized under the laws of the Cayman Islands ( Holdco ), and Silver Delaware Investment Limited, a Delaware corporation and wholly owned subsidiary of Holdco ( Merger Sub ), under which Merger Sub will be merged with and into the Company (the Merger ), with the Company continuing after the Merger as the surviving corporation and subsidiary of Holdco.
Under the terms of the Merger Agreement, Holdco may be required to pay the Company a reverse termination fee of approximately $31.6 million if the Merger Agreement is terminated under certain circumstances. In order to secure the reverse termination fee that may become payable by Holdco to the Company, concurrently with the execution of the Merger Agreement, Holdco has deposited shares of Company common stock equal to approximately $7.2 million of the aggregate Merger Consideration into an escrow account with Computershare Trust Company, N.A. (the Escrow Account ), and agreed to make a further deposit of approximately $24.3 million within 21 calendar days of the execution of the Merger Agreement.
On June 22, 2017, Holdco deposited the additional $24.3 million into the Escrow Account.
Consummation of the Merger is expected to occur in 2017 and is subject to certain customary closing conditions including, among others, the absence of certain legal impediments and approval by the Companys stockholders.
Additional Information and Where to Find It
This communication does not constitute an offer to sell or the solicitation of an offer to buy the securities of the Company or the solicitation of any vote or approval. This communication is being made in respect of the proposed merger transaction involving the Company and the Buyer Consortium. The proposed merger of the Company will be submitted to the stockholders of the Company for their consideration. In connection therewith, the Company intends to file relevant materials with the Securities and Exchange Commission (the SEC), including a definitive proxy statement. However, such documents are not currently available. The definitive proxy statement will be mailed to the stockholders of the Company. BEFORE MAKING ANY VOTING OR ANY INVESTMENT DECISION, INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT REGARDING THE PROPOSED TRANSACTION AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders may obtain free copies of the definitive proxy statement, any amendments or supplements thereto and other documents containing important information about the Company, once such documents are filed with the SEC, through the website maintained by the SEC at www.sec.gov. Copies of the documents filed with the SEC by the Company will be available free of charge on the Companys website at www.sciclone.com under the heading SEC Filings in the Investors and Media portion of the Companys website. Stockholders of the Company may also obtain a free copy of the definitive proxy statement and any filings with the SEC that are incorporated by reference in the definitive proxy statement by contacting the Companys Investor Relations Department at (650) 358-1447
Participants in the Solicitation
The Company and its directors and executive officers may be deemed participants under SEC rules in the solicitation of proxies from the Companys stockholders in favor of the proposed transaction. Information about the Companys directors and executive officers and their interests in the solicitation, which may, in some cases, differ from those of the Companys stockholders generally, will be included in the proxy statement to be filed with the SEC in connection with the proposed transaction. Additional information about these directors and executive officers is available in the Companys proxy statement for its 2017 Annual Meeting of Stockholders, which was filed with the SEC on April 28, 2017, and in the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2016, which was filed with the SEC on March 9, 2017. To the extent that holdings of the Companys securities by the Companys directors and executive officers have changed since the amounts printed in the latest proxy statement or Form 10-K, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC.
This Current Report on Form 8-K, and the documents to which the Company refers you in this communication, contain forward-looking statements made pursuant to the safe-harbor provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements represent the Companys current expectations or beliefs concerning future events, plans, strategies, or objectives that are subject to change, and actual results may differ materially from the forward-looking statements. Without limiting the foregoing, the words expect, plan, believe, seek, estimate, aim, intend, anticipate, believe, and similar expressions are intended to identify forward-looking statements. Forward-looking statements may involve known and unknown risks over which the Company has no control. Those risks include, without limitation (i) the risk that the proposed transaction may not be completed in a timely manner, or at all, which may adversely affect the Companys business and the price of its common stock, (ii) the risk that the Buyer Consortium may fail to obtain financing, and notwithstanding that receipt of financing is not a closing condition, that the closing may not occur if Buyer Consortium is unable to secure adequate financing, (iii) the failure to satisfy all of the closing conditions of the proposed transaction, including the adoption of the definitive agreement by the Companys stockholders, (iv) the occurrence of any event, change or other circumstance that could give rise to the termination of the definitive agreement, (v) the effect of the announcement or pendency of the proposed transaction on the Companys business, operating results, and relationships with customers, suppliers and others, (vi) risks that the proposed transaction may disrupt the Companys current plans and business operations, (vii) potential difficulties retaining employees as a result of the proposed transaction, (viii) risks related to the diverting of managements attention from the Companys ongoing business operations, and (ix) the outcome of any legal proceedings that may be instituted against the Company related to the definitive agreement or the proposed transaction. In addition, the Companys actual performance and results may differ materially from those currently anticipated due to a number of risks including, without limitation: the Companys substantial dependence on sales of ZADAXIN in China; the dependence of the Companys revenues on obtaining or maintaining regulatory licenses and compliance with other country-specific regulations, including renewing the Companys drug import license for ZADAXIN; risks and uncertainties relating to Chinese government actions intended to reduce pharmaceutical prices such as the reduction in some provinces of the governmentally permitted maximum listed price for the Companys products and increased oversight of the health care market and pharmaceutical industry; risks related to existing and future pricing pressures on our products, particularly in China; SciClones ability to implement and maintain controls over its financial reporting; actual or anticipated fluctuations in the Companys operating results, some of which may result from undertaking new clinical development projects, or from licensing or acquisition-related expenses including up-front fees, milestone payments, and other items; the Companys ability to successfully develop or commercialize its products; risks related to the impact of the Companys efforts to in-license or acquire other pharmaceutical products for marketing in China and other markets; the Companys dependence of its current and future revenue and prospects on third-party license, promotion or distribution agreements, including the need to renew such agreements, enter into similar agreements, or end arrangements that SciClone does not believe are beneficial; risks relating to operating in China, including risk due to changes in regulatory environment, slow payment cycles and changes to economic conditions including currency exchange fluctuations; uncertainty in the prospects for unapproved products, including uncertainties as to pricing and competition and risks relating to the clinical trial process and related regulatory approval process and the process of initiating trials at, and enrolling patients at, clinical sites. Please also refer to other risks and uncertainties described in SciClones filings with the SEC, including but not limited to the risks described in SciClones Annual Report on Form 10-K for the fiscal year ended December 31, 2016 and the Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017. All forward-looking statements are based on information currently available to SciClone and SciClone assumes no obligation to update any such forward-looking statements.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|Dated: June 23, 2017||SCICLONE PHARMACEUTICALS, INC.|
/s/ Wilson W. Cheung
|Wilson W. Cheung|
|Chief Financial Officer and Senior Vice President, Finance|